Dunbar v. State

• Citation: 94 So. 224,130 Miss. 317
• Decision Date: 11 December 1922
• Docket Number: 23030
• Court: United States State Supreme Court of Mississippi
• Parties: DUNBAR v. STATE

94 So. 224

130 Miss. 317

DUNBAR v. STATE

No. 23030

Supreme Court of Mississippi

December 11, 1922

September 1922

FALSE PRETENSES. Testimony held not to sustain allegations of indictment.

When one is indicted for obtaining money by false pretenses under section 1166, Code of 1906 (Hemingway's Code, section 893), the testimony must sustain the allegations of the indictment. Where the testimony shows no crime of this character, the defendant should be discharged.

HON. R S. HALL, Judge.

APPEAL from circuit court of Forrest county, HON. R. S. HALL, Judge.

George Dunbar was convicted of obtaining money by false pretenses, and he appeals. Reversed, and appellant discharged.

Case reversed, and appellant discharged.

C. E. Hill, of counsel for appellant.

We submit, that the state failed to prove the allegations of the indictment in the following respects: Appellant did not make the representations as charged--they were made by the other negro; appellant did not find the pocketbook, as alleged, but same was found by the other negro; the money was not obtained by him; there was to be no equal division of the money, but same was to be divided in four parts; there is not a word of testimony from Minor that any representation was made to him that several hundred dollars had been found, either by appellant or by the other negro, but on the contrary his testimony is that the other negro never at any time, claimed to have found but three dollars, and finally, the the entire transaction was completed on the same day, the parties going to the bank for the purpose of cashing Minor's check, whereas the indictment averred that the banks were closed, and because of this fact appellant obtained seventy-five dollars from Miner on the promise to divide the money in the pocketbook the next morning when they could get to the bank and have the bills changed. The scheme alleged in the indictment is, therefore, not substantiated by the testimony of the state's witnesses, and this court has several times held that the proof must conform to the allegations of the indictment. Carter v. State, 82 So. 146; 19 Cyc., pages 438-439. It is manifest that Minor did not part with his money in the hope, and on the promise of getting half of several hundred dollars, as alleged; he was to get one-fourth of three dollars, according to his own testimony, which would have been seventy-five cents and therefore the conviction cannot stand, the false token not having been proved as laid in the indictment. Neither is it true that the bills in the pocketbook could not be changed because the banks were closed, for the banks were wide open and Minor had no difficulty in having his check cashed that very day. What the inducement was that caused Minor to deliver his money does not appear, nor is it important here. The point is that the proof does not sustain the allegations of the indictment.

There was also a fatal variance in the proof in that the third negro obtained the seventy-five dollars. This court has held that the state must prove that the money, or some part thereof, should have been obtained by the accused or for him. Bracey v. State, 64 Miss. 26, 8 So. 165.

D. C. Enochs, assistant attorney-general, for the state.

The demurrer says that the indictment fails to charge that the pretended finding of the pocketbook was the cause of Minor parting with his seventy-five dollars to the appellant; but the indictment charges that it was "by color and means of which false pretense" that appellant obtained the seventy-five dollars from Minor. It is true the indictment does not charge that Minor relied upon the representation in so many words, but it does charge that it was by means of the representation that the money of Minor was obtained, which is the same thing, and is sufficient. State v. Dodenhoff, 88 Miss. 277.

The demurrer says that the indictment fails to charge that the defendant "feloniously" intended to cheat and defraud Albert Minor. The indictment says "devising and intending to cheat and defraud Albert Minor did then and there designedly, falsely and feloniously pretend to the said Albert Minor," etc. There is no merit in this contention, and a case in point is that of State v. Turley, 142 Mo. 403, 44 S.W. 267, wherein it is said: "The indictment is founded on section 3564, Revised Statutes 1889, which provides that 'every person who, with intent to cheat or defraud another, shall designedly, by any false token or writing, or by any false pretense, . . . obtain from any person any money, personal property, right in action or other valuable thing or effect whatsoever, . . . shall be punished in the same manner and to the same extent as for feloniously stealing the money, property or thing so obtained.'"

The first...